.ZS3 M6 



91 
M5 
1 



OPINION ON THE 
QUESTION OF UPPER SILESIA 

Written at the Request of the Government of Germany 



By 

DAVID HUNTER MILLER 

n 



And Transmitted by the German Government to the 

League of Nations, to the Governments of Great 

Britain, France and Italy and 

to the Vatican* 



September 25, J 92 J 



U R6C6W60 



September 25th, 1921. 



Your Excellency: 

On behalf of the Government of Germany you have 
requested my opinion on the existing juridical situation 
involved in the question of Upper Silesia, in so far as the 
same depends upon the Treaty of Versailles, the plebiscite 
held thereunder, and the action of the Supreme Council 
in requesting the Council of the League of Nations to make 
a recommendation as to the frontier between Germany 
and Poland. 

First to be considered in regard to this question of 
Upper Silesia are the terms, the history and the inter- 
pretation of the various provisions of the Treaty of Ver- 
sailles. 

Nothing is better settled in International Law than the 
rule that in the interpretation of a treaty the declarations 
of the Contracting Parties and the circumstances prior 
to and surrounding the execution of the treaty are not 
only to be taken into consideration, but are of the utmost 
importance. The ultimate aim in the correct interpreta- 
tion of any International Agreement is to arrive at the 
intention of the Contracting Powers. This rule of Inter- 
national Law is founded on reason, and in view of the 
circumstances surrounding the execution of the Treaty 
of Versailles, its application could in no case be more 
appropriate than in the case of the interpretation of that 
document. 

His Excellency 
the Chancellor 
Dr. Wirth 
BERLIN 
Wilhelmstrasse, 74 



It is well known that agreement as to the basis of the 
Peace had been reached between Germany on one hand 
and the Allied Powers and the United States of America 
on the other, during the negotiations which preceded the 
Armistice of November 11, 1918. 

I shall refrain from quoting at length from the docu- 
ments which embody these pre-Armistice negotiations; 
their result is perhaps nowhere better summed up than 
in the work entitled "A History of the Peace Conference 
of Paris," edited by Professor H. W. V. Temperley and 
published under the auspices of the Institute of Interna- 
tional Affairs (London, 1920), where it is said (Volume I, 
at page 385) : 

"Prior to the dispatch of the note of 5th No- 
vember, the German and American Governments 
had reached agreement upon the fundamental 
point that the President's address of 8th January, 
1918, and his subsequent addresses, were to be the 
basis of the peace. The note of 5th November em- 
bodies the memorandum of the Allied Govern- 
ments; and it is this memorandum which must be 
viewed as the documentary embodiment of the pro- 
visions of the Agreement as to the terms of peace 
and principles of settlement." 

Turning now to the Memorandum of the Allies, quoted 
in the Note addressed to the German Government by 
President Wilson on November 5, 1918, we find the fol- 



lowing 



"The Allied Governments * * * declare their 
willingness to make peace with the Government of 
Germany on the terms of peace laid down in the 
President's Address to Congress of January 8, 1918, 
and the principles of settlement enunciated in his 
subsequent Addresses." 



It was the Address of President Wilson of January 8, 
1918, which embodied the famous Fourteen Points. It is 
accordingly clear that prior to the Armistice of November 
11, 1918, a distinct and perfect Agreement had been 
reached between the German Government on the one hand 
and the Allied Powers and the United States of America 
on the other, and that the Fourteen Points and the sub- 
sequent Declarations of President Wilson were the basis 
of Peace with Germany. 

Indeed, this conclusion was not only admitted by all 
the Governments then belligerent but was thereafter so 
vigorously insisted upon by all the Powers represented at 
the Conference of Paris, that it is irrefutable and requires 
no further argument. In the reply of the Allied and As- 
sociated Powers to Germany, transmitted with the cover- 
ing Note of Clemeneeau of June 16, 1919, it was said: 
(Official English Translation) 

"The Allied and Associated Powers are in com- 
plete accord with the German Delegation in their 
insistence that the basis for the negotiation of the 
Treaty of Peace is to be found in the correspond- 
ence which immediately preceded the signing of the 
Armistice on November 11, 1918. It was there 
agreed that the Treaty of Peace should be based 
upon the Fourteen Points of President Wilson's 
address of January 8, 1918, as they were modified 
by the Allies' memorandum included in the Presi- 
dent's note of November 5, 1918, and upon the prin- 
ciples of settlement enunciated by President Wilson 
in his later addresses, and particularly in his ad- 
dress of September 27, 1918. These are the prin- 
ciples upon which hostilities were abandoned in 
November, 1918, these are the principles upon 
which the Allied and Associated Powers agreed that 
peace might be based, these are the principles which 
have guided them in the deliberations which have 
led to the formulation of the Conditions of Peace." 



Thus, it is to the utterance of President Wilson that we 
must turn in order properly to know the meaning of the 
Treaty of Versailles, and of those utterances there are at 
least two which are of special importance in regard to 
the question of Upper Silesia. 

In the address of January 8, 1918, is found the following 
language as Number Thirteen of the Fourteen Points: 

"Thirteen. — An independent Polish State should 
be erected which should include the territories in- 
habited by indisputably Polish populations, which 
should be assured a free and secure access to the 
sea, and whose political and economic independ- 
ence and territorial integrity should be guaranteed 
by international covenant." 

And in the speech of February 11, 1918 is included this 
language of the Four Principles: 

"The principles to be applied are these: 

First, that each part of the final settlement must 
be based upon the essential justice of that particular 
case and upon such adjustments as are most likely 
to bring a peace that will be permanent; 

Second, that peoples and provinces are not to be 
bartered about from sovereignty to sovereignly as if 
they were mere chattels and pawns in a game, even 
the great game, now for ever discredited, of the 
Balance of Power; but that, 

Third, every territorial settlement involved in 
this war must be made in the interest and for the 
benefit of the populations concerned, and not as a 
part of any mere adjustment or compromise of 
claims amongst rival States; and 

Fourth, that all well-defined national aspirations 
shall be accorded the utmost satisfaction that can 



be accorded them without introducing new or per- 
petuating old elements of discord and antagonism 
that would be likely in time to break the peace of 
Europe, and consequently of the world." 

Therefore, it is to this language that we must turn in 
considering the case of Upper Silesia. No scholastic rea- 
soning based on technicalities of expression, no ingenious 
attempt to pick out here and there from the Treaty of 
Versailles a word a phrase, in the effort to make the worse 
appear the better cause, can prevail as against those noble 
declarations of justice and of right, which have received 
the assent, not only of the Allied and Associated Powers 
and of Germany, but of the whole civilized world. 

In the light of the foregoing may now be considered the 
circumstances of the framing of the Treaty of Versailles. 
It is well known that the document was wholly written by 
the representatives of the Allied and Associated Powers, 
and that Germany had no part in its drafting. True it is 
that certain changes from the original proposed draft of 
the Treaty were made as a result of the written observa- 
tions of the German Delegation, and that the most im- 
portant of those changes was made in relation to Upper 
Silesia. None the less, the changes which were made 
from the proposed original draft were changes written by 
the representatives of the Allied and Associated Powers, 
and in their writing and in their drafting Germany had 
no part. Germany was required to make the choice either 
of accepting or refusing the document which was pre- 
sented by the Allied and Associated Powers in its final 
form. 

It was in respect of this decision that it was stated in 
the Note of the 16th June 1919 above mentioned, a Note 
which described itself as being the "last word" (Official 
English Translation). "As such the Treaty in its present 
form must be accepted or rejected." 



6 



It is an elementary rule of human justice embodied in 
every system of law with which I am familiar, whether 
municipal or international, that under such circumstances 
the terms of a document are to be taken, in any case of 
possible doubt, most strongly in favor of the party not 
concerned in the drafting of the paper. 

In the document presented on the 7th May, 1919, by the 
Allied and Associated Powers to the German Delegation, 
entitled "Conditions of Peace" or, in other words, in the 
first proposed draft of the Treaty, provision was made for 
the cession by Germany to Poland of Upper Silesia. This 
proposal evoked an earnest protest from the German 
delegation under the date of 29th May, 1919, a protest 
which is translated in the work of Professor Temperley 
above mentioned (Vol. II page 287) as follows: 

"This (conflict of the provisions of the draft 
Treaty in respect to Poland with President Wilson's 
principles) particularly applies to Upper Silesia. 
The proposed separation of the greater part of this 
district from Germany constitutes a quite unjust- 
ifiable inroad into the geographical and economic 
structure of the German Empire. 

Since 1163 Upper Silesia has had no political 
connexion with the Polish Empire. There are no 
national Polish traditions or memories in Upper 
Silesia * * * Poland cannot assert any claims 
for the cession of Upper Silesia, especially not 
such as are based on the principles of President 
Wilson. The districts of Upper Silesia demanded 
for Poland are not inhabited by an indisputably 
Polish population. The will of the population has 
been clearly expressed in the elections of the 
Reichstag in 1903 and 1907. * * * Furthermore, 
after the collapse of the German power, signs of the 
predominantly German character of Upper Silesia 
were not missing. * * * The Polish language 



(High Polish) is not the language of the Upper 
Silesian, who speaks a Polish dialect (Wasser- 
polnisch). This dialect * * * is not a sign of 
nationality, especially not a contradiction to the 
consciousness of German nationality. * Up- 

per Silesia owes all her intellectual and material 
development to German activity. * * Germany 

cannot dispense with Upper Silesia, whilst Poland 
is not in need of it. * * * The cession of Upper 
Silesia to Poland is not in the interest of the Upper 
Silesian population. Living conditions in Upper 
Silesia especially in the field of health and social 
precautions are incomparably better than those in 
the adjoining Poland where legislation for the pro- 
tection of the working people is only just being 
agitated. The cession of Upper Silesia to Poland 
is also not in the interest of the remaining States of 
Europe and of the world, for it is certain to create 
new elements of discord and antagonism. * * * 
This will greatly endanger the peace of Europe and 
of the world. It is in the interest of the Allied and 
Associated Powers themselves to leave Upper 
Silesia with Germany, for Germany can meet her 
liabilities resulting from the world war only in con- 
junction with Upper Silesia, and never without her. 
For this reason alone Germany cannot consent to a 
cession of Upper Silesia." 

Now, as to this German protest, it is to be observed that 
it very correctly takes as its basis the principles enun- 
ciated by President Wilson in the Declarations herein- 
above quoted; for the German protest expressly relies 
upon the language of the thirteenth Point and upon the 
"interest of the populations concerned" mentioned in the 
third of the Four Principles of the speech of President 
Wilson of February 11, 1918. 

The expressions of the German protest are of the highest 
importance for the reason that these expressions were 



8 



explicitly accepted by the Allied and Associated Powers 
as being "the basis, the reason, and the justification of the 
change which was made in the Treaty in respect of Upper 
Silesia. The precise language in this regard employed 
by the Allied and Associated Powers was that "the German 
note has established a case for rectification" (Official 
English Translation). 

For in the note of Clemenceau of 16th June, 1919, it 
was said (Official English Translation) : 

"At the same time in certain cases the German 
Note has established a case for rectification, which 
will be made; and in view of the contention that 
Upper Silesia though inhabited by a two to one 
. majority of Poles (1,250,000 to 650,000, 1910 German 
census) wishes to remain a part of Germany, they 
are willing that the question of whether Upper 
Silesia should form part of Germany, or of Poland, 
should be determined by the vote of the inhabitants 
themselves." 

Thus is found not only a demand by Germany that 
the Conditions of Peace be changed to accord with the 
agreed basis of the peace, but also a formal assent by the 
Allied and Associated Powers to that demand. Accord- 
ingly there exists an express agreement between the Par- 
ties to the Treaty confirming the pre-Armistice Agree- 
ment to the same effect pursuant to which the question of 
Upper Silesia must be resolved along those lines of justice 
and of right embodied in the declarations of President 
Wilson, that is to say, that firstly, there should be no 
cession of German territory, secondly, that territory not 
indisputably Polish should be retained by Germany, and 
lastly, that there should be no cession except in the in- 
terest of the populations concerned. 



9 

The formal recognition by the Allied and Associated 
Powers of this specific agreement with Germany, was 
transmitted by them to the German Delegation at the time 
of the transmission of the text of the Treaty itself, a text 
which, in so far as its provisions relating to Upper Silesia 
are concerned, had never before been seen by the German 
Delegation, a text which was transmitted with an Ulti- 
matum, only twelve days before the signature of the 
Treaty. Obviously, that specific agreement between the 
Allied and Associated Powers and Germany must be re- 
garded as the point of departure from which any con- 
clusions in the matter of Upper Silesia must be reached, 
and as overriding in favor of Germany any possible doubt, 
ambiguity, or obscurity in the voluminous and detailed 
text of the Treaty itself. 

So the provisions of the "Conditions of Peace" in regard 
to Upper Silesia were abandoned, and in lieu thereof there 
were inserted in the Treaty of Versailles provisions for a 
plebiscite in the area of Upper Silesia. But before coming 
to the necessary detailed examination of these Treaty pro- 
visions, it will be desirable, first : to examine the point of 
view, the attitude of mind, of which those Treaty provi- 
sions were drawn, and second : to make a brief summary 
of the result of the plebiscite in Upper Silesia held on 
March 20 last in accordance with the Treaty terms. 

In the reply of the Allied and Associated Powers and the 
covering Note of the 16th of June, 1919, appears clearly 
the thought of the Allied and Associated Powers in regard 
to Upper Silesia. Their idea was that the territory was 
"indisputably" Polish. They said in the extract above 
quoted that it was Polish by two to one. They cited the 
figures of the German census as justifying this conclusion. 
The representatives of the Allied and Associated Powers 
relied of course in reaching these conclusions upon the 
information furnished to them by their experts. The in- 



10 

formation may have been correct, but the conclusions 
were wrong, hopelessly, vitally wrong, and were shown 
to be wrong by the plebiscite vote in Upper Silesia which 
was nearly seven to four German. But the thought of the 
Allied and Associated Powers, disclosed not only in the 
discarded provisions of the "Conditions of Peace," but 
also in the plebiscite provisions of the Treaty of Peace in 
regard to Upper Silesia, rested wholly upon those funda- 
mentally erroneous conclusions. 

It is indeed of great importance to observe that the 
Allied and Associated Powers based the Treaty provisions 
regarding Upper Silesia squarely and solely on this mis- 
take of fact. They expressly declared that Poland had 
no legal claim to the cession of Upper Silesia, they ex- 
pressly recognized that any claim of Poland to Upper 
Silesia was vitally different from a claim of Poland to 
any part of the territories dismembered by the Partition, 
and they expressly rested the provisions of the Treaty 
upon the emphatic assertion that "the majority of the 
population is indisputably Polish," an assertion which the 
majority of the population have repudiated with even 
greater emphasis. 

Nothing could show more clearly the thought of the 
Allied and Associated Powers in this regard, and, in the 
light of subsequent events, nothing could show more 
clearly that the Allied and Associated Powers contem- 
plated that Upper Silesia should be retained by Germany 
in the event of a majority vote in favor of Germany, im- 
possible or improbable as that event may have been 
deemed by the Allied and Associated Powers than the fol- 
lowing language contained in the above mentioned Reply 
to the German Delegation (Official English Transla- 
tion) : 



11 



"A considerable portion of the German answer 
is devoted to the question of Upper Silesia. It is 
recognised that the problem here ditfers from that 
in Posen and West Prussia they were (sic) for the 
reason that Upper Silesia was not a part of the 
Polish territories when dismembered by the Parti- 
tion. It may be said that Poland has no legal claim 
to the cession of Upper Silesia: it is emphatically 
not true that she has no claim which could be sup- 
ported on the principles of President Wilson. In 
the district to be ceded, the majority of the popu- 
lation is indisputably Polish. Every German book 
of reference, every school-book, teaches the Ger- 
man child that the inhabitants are Polish in origin 
and in speech. The Allied and Associated Powers 
would have been acting in complete violation of the 
principles which the German Government itself 
professes to accept had they left unregarded the 
Polish claims to this district. 

"However, the German Government now contest 
these conclusions. They insist that separation from 
Germany is not in accordance with the wishes or the 
interests of the population. Under these circum- 
stances the Allied and Associated Powers are will- 
ing to allow the question to be determined by those 
particularly concerned. They have therefore de- 
cided that this territory shall not be immediately 
ceded to Poland, but that arrangements shall be 
made to hold a plebiscite there." 

Since the substance of the above cited German protest 
of 29 May, 1919, is now supported by the facts, it would 
seem that the claim of the German protest should likewise 
now be realized in the result. 

The plebiscite in Upper Silesia was held on March 20 
last. The result was a vote for Germany of 717,122 and 
for Poland of 483,514. The argument might well stop here. 
With an overwhelming majority vote in Upper Silesia for 
Germany, it is difficult to imagine, a priori, any contention 



12 



that Germany should make any cession to Poland of the 
territory involved. 

But in view of various arguments which have been put 
forth looking toward a cession by Germany of a portion 
of Upper Silesia, and particularly in view of the proceed- 
ings of the Supreme Council, a further brief statement 
of the results of the plebiscite should be made. 

The only districts which gave Polish majorities of any 
appreciable percentage were Tarnowitz, Pless and Rybnik. 
In Gross-Strehlitz, the vote was substantially evenly di- 
vided. In the so-called industrial basin, there are in 
reality five district areas, as follows : Beuthen, (including 
of course the city of Beuthen which is within the area), 
Kattowitz (including of course the city of Kattowitz which 
is within the area), Konigshutte, Gleiwitz and Zabrze or 
Hindenburg. All five of these district areas gave a ma- 
jority vote in favor of Germany, as did all the other dis- 
tricts in the plebiscite area not specially mentioned. 

While in the view that seems to me to be correct, the 
vote anaylzed by districts has no bearing on the question 
involved, it has been alluded to in order to clarify the 
subsequent discussion. I shall, however, not dignify by 
any argument of mine, the absurd contention that the vote 
of a town, located in the centre of a district area, may 
somehow be disregarded in looking at the vote of the 
district. From any possible point of view whatever of the 
Treaty of Versailles, such a thought needs only its state- 
ment to complete its own refutation. 

I come now to a detailed consideration of the language 
of the Treaty of Versailles. 

By the "Conditions of Peace" (the proposed draft of 
May 7, 1919), Upper Silesia is to be ceded to Poland 
(Articles 27, 87) . But by the definitive Treaty of Versailles 
it is provided in Article 88 as follows: 



13 



"In the portion of Upper Silesia included within 
the boundaries described below, the inhabitants 
will be called upon to indicate by a vote whether 
they wish to be attached to Germany or to Poland: 

(Here follows the boundary description.) 

The regime under which this plebiscite will be 
taken and given effect to is laid down in the Annex 
hereto. 

The Polish and German Governments hereby re- 
spectively bind themselves to conduct no prosecu- 
tions on any part of their territory and to take no 
exceptional proceedings for any political action per- 
formed in Upper Silesia during the period of the 
regime laid down in the Annex hereto and up to 
the settlement of the final status of the country. 

Germany hereby renounces in favour of Poland 
all rights and title over the portion of Upper Silesia 
lying beyond the frontier line fixed by the Principal 
Allied and Associated Powers as the result of the 
plebiscite." 

Following Article 88 is an Annex of six paragraphs. 

The first three of these six paragraphs of the Annex 
provide for the evacuation of the plebiscite area, its gov- 
ernment by an International Commission and the powers 
of that Commission; those three paragraphs of the An- 
nex are not material to this discussion. 

Paragraph 4 of the Annex provides for the time of the 
vote, prescribes the qualifications of the voters and then 
continues: 

"Every person will vote in the commune where 
he is domiciled or in which he was born, if he has 
not retained his domicile in the area. 

The result of the vote will be determined by 
communes according to the majority of the votes in 
each commune." 



14 

Paragraphs 5 and 6 of the Annex are as follows: 

5. 

"On the conclusion of the voting, the number of 
votes cast in each commune will be communicated 
by the Commission to the Principal Allied and As- 
sociated Powers, with a full report as to the taking 
of the vote and a recommendation as to the line 
which ought to be adopted as the frontier of Ger- 
many in Upper Silesia. In this recommendation 
regard will be paid to the wishes of the inhabitants 
as shown by the vote, and to the geographical and 
economic conditions of the locality." 

■ • 
6. 

"As soon as the frontier has been fixed by the 
Principal Allied and Associated Powers, the Ger- 
man authorities will be notified by the International 
Commission that they are free to take over the ad- 
ministration of the territory which it is recognised 
should be German; the said authorities must pro- 
ceed to do so within one month of such notification 
and in the manner prescribed by the Commission. 

Within the same period and in the manner pre- 
scribed by the Commission, the Polish Government 
must proceed to take over the administration of the 
territory which it is recognised should be Polish. 

When the administration of the territory has 
been provided for by the German and Polish au- 
thorities respectively, the powers of the Commis- 
sion will terminate. 

The cost of the army of occupation and ex- 
penditure by the Commission, whether in discharge 
of its own functions or in the administration of the 
territory, will be a charge on the area." 



15 



Another Article of the Treaty of Versailles immediately 
relating to Upper Silesia is Article 90, which is in the fol- 
lowing terms: 

"Poland undertakes to permit for a period of 
fifteen years the exportation to Germany of the 
products of the mines in any part of Upper Silesia 
transferred to Poland in accordance with the pres- 
ent Treaty. 

Such products shall he free from all export 
duties or other charges or restrictions on exporta- 
tion. 

Poland agrees to take such steps as may be 
necessary to secure that any such products shall 
be available for sale to purchasers in Germany on 
terms as favourable as are applicable to like prod- 
ucts sold under similar conditions to purchasers in 
Poland or in any other country." 

It will be seen that the two essential features of the 
provisions of the Treaty which have just been quoted are 
first that a vote shall be taken in the plebiscite area, and 
second that the final determination of the frontier be- 
tween Germany and Poland shall be made by the Prin- 
cipal Allied and Associated Powers, or in other words, by 
the Supreme Council. 

The Supreme Council has not definitely acted under 
these provisions of the Treaty of Versailles, but has re- 
ferred the question of Upper Silesia to the Council of the 
League of Nations for a recommendation as to the 
frontier. 

While only the bare results of the meetings of the Su- 
preme Council are officially announced, it appears that 
that Body received at its session of August 9 last, a Re- 
port of British, French, and Italian experts, laying down 
the following three principles deduced by them from the 
provisions of the Treaty of Versailles: 



16 



"1. Le traite de Versailles (article 88 et annexe) 
a prescrit que la terri Loire plebiscitaire serait 
'partage' entre FAiiemagne et la Pologne; on ne 
saurait done invoquer la majorite obtenue dans 
l'ensembie du territoire par une des parties pour 
lui attribuer la totalite de la Haute-Silesie; 

2. Le traite a prescrit que, pour le trace de la 
frontieres germano-polonaise, il devra etre tenu 
compte en premier lieu des voeux des habitants 
exprimes dans la consultation populaire et ensuite 
de la situation geographique et economique des 
localites; 

3. C'est du vote par communes que Ton doit 
s'inspirer dans le trace de la frontiere." 

It further appears that the Supreme Council approved 
this Report and endeavored without success to agree up- 
on a compromise line dividing Upper Silesia between Ger- 
many and Poland. 

The view of the British, French, and Italian experts, 
expressed in the three principles quoted above, may there- 
fore be said to be the basis of the discussions by the Su- 
preme Council of the question of Upper Silesia after the 
plebiscite and until the time of the reference of the matter 
by the Supreme Council to the Council of the League of 
Nations. 

That Report of the British, French and Italian experts, 
which must be admitted to have been made by eminent 
jurists, certainly requires the most grave consideration. 

The fundamental principle of the Report of the experts 
is that numbered first. It is there laid down that the 
Treaty of Versailles (Art. 88 and Annex) provides that 
the plebiscite area is to be divided between Germany and 
Poland, and that the majority of the vote in the area as a 
whole is not controlling. 

Above has been quoted, I think, every word of the 



17 



Treaty of Versailles which could possibly be cited in sup- 
port of the first principle stated in the Report of the 
experts. 

I shall now proceed to an examination of the correct- 
ness of the conclusions reached in the report of the ex- 
perts, looking in a precise way at the words of the Treaty 
of Versailles. 

The last paragraph of Article 88 of the Treaty of Ver- 
sailles speaks of the possible cession of Germany of "the 
portion of Upper Silesia lying beyond the frontier line 
fixed by the Allied and Associated Powers as the result 
of the plebiscite." 

It has been argued that this phrase as a whole and the 
use of the word "portion" in that phrase in particular, 
supports the view that the Treaty of Versailles contem- 
plates a division of the plebiscite area in Upper Silesia. 
Clearly this is not so, and the word "portion" has no such 
tendency, as the whole plebiscite area of Upper Silesia is, 
strictly speaking, a "portion" of Upper Silesia, as is in- 
deed expressly stated in the first paragraph of the same 
Article 88. 

The last clause of paragraph 4 of the annex, and para- 
graph 5, provide that the result of the vote shall be de- 
termined by communes, and communicated by communes 
to the Supreme Council. I cannot give to this word 
"communes" the weight that seems to be attached to it 
in the above mentioned report of the experts. 

The words of Paragraphs 4 and 5 of the Annex, and 
the references therein to communes, relate merely to 
the modalities of the voting, and not at all to the prin- 
ciples of self-determination stated by the Allied and Asso- 
ciated Powers to be the basis of the plebiscite provisions 
for Upper Silesia. Obviously the rule laid down that a 
voter must vote in the commune of his domicile or of his 



18 

birth requires the taking of the votes by communes, the 
counting of the votes by communes, and the reaching of 
the total vote by adding all of the votes taken in all of 
the communes. It may be repeated that all such provi- 
sions prescribe merely the necessary modalities of the 
vote. 

The Report of the experts appears to intend to give 
some weight to the number of communes, as such, voting 
by majority one way or the other. No such conclusion 
can possibly be supported. Under such a theory, a mere 
rearrangement of voting districts might destroy the effect 
of any majority; and in the present case, the extraord- 
inary results of the theory show how impossible and un- 
sound it is; for example, it would require the ignor- 
ing of the fact that some communes contain 40,000 voters 
or more, and others less than 500. 

Perhaps mention should be made of the expression "the 
frontier of Germany in Upper Silesia" (Annex Par. 5), 
particularly of the use of the word "in" (French text 
"en"). 

It has been argued that to speak of a frontier "in" Upper 
Silesia means that the plebiscite area is to be divided. 
No argument could be more fallacious; for even if the 
majority voting in the plebiscite area had been Polish, 
and even if the plebiscite area had been assigned to 
Poland, the frontier of Germany would still have been 
"in" Upper Silesia, as the first paragraph of Article 88 
of the Treaty shows. 

Indeed, any argument based on the use of the preposi- 
tion "in," as against the fundamental principles of the 
Peace, would seem obviously to be carrying technical rea- 
soning to an unwarranted as well as to an impossible 
length. 

Nor does the last sentence of Paragraph 5 of the Annex 



19 



lay down any principle of division of territory, in speak- 
ing of "the geographical and economic conditions of the 
locality" as well as of the wishes of the inhabitants. The 
precise expression appears elsewhere in the Treaty (e. g., 
Articles 95 and 97) and perhaps was inserted as embody- 
ing the following "principle" expressed by the Commis- 
sion on Polish affairs of the Conference of Paris in its 
first Report (see page 2 of that Report, English print) : 

"that rectifications of the frontier, in some places 
in favour of the Poles and in others in favour of the 
Germans, be made where the ethnic facts are out- 
weighed by the other facts and principles involved." 

That Commission on Polish Affairs sat under the follow- 
ing terms of reference of February 26, 1919 : 

"That the question of the boundaries! of the 
Polish State shall be referred for examination and 
report by the Committee set up by the Preliminary 
Peace Conference in Paris for the consideration of 
Polish affairs." 

Neither do the provisions of Paragraph 6 of the Annex, 
regarding the taking over the administration of the 
plebiscite area either by Germany or by Poland, as the 
case might be, support any argument for the division of 
Upper Silesia under the circumstances of the plebiscite. 

Indeed, it is to be remembered that both Article 88 of 
the Treaty and the Annex following that Article were 
inserted in the Treaty of Versailles sometime between 
May 29, 1919, the date of the German Protest, and June 16, 
1919, the date of the Reply of the Allied and Associated 
Powers. The provisions of the Annex are in large part 
simply copied in substance and, indeed, almost literally 



20 

from other portions of the Treaty (e. g., Articles 95 and 
97) . As was shown earlier in my discussion, the thought 
of the Allied and Associated Powers was that the plebis- 
cite area would certainly, by a large majority, vote Polish; 
and even if there was vaguely considered to exist the 
possibility of some rectification of the frontier of the 
plebiscite area after such Polish vote, in view of the cir- 
cumstance that three Kreise and parts of two others in 
Upper Silesia had been excluded from that area, this fact, 
if it be a fact, could not support any argument for the 
division of the plebiscite area. 

Nor does Article 90 of the Treaty advance the case for 
the division of Upper Silesia. It provides for German 
rights after a cession to Poland of Upper Silesia, if such 
a cession should take place. It is another indication of 
the view of the Allied and Associated Powers that the 
vote in Upper Silesia would go Polish. This Article 90 
was expressly asserted in the Reply of the Allied and 
Associated Powers to be a concession in favor of Ger- 
many, and therefore cannot now be deemed to furnish 
an argument against her. 

The expression in Article 90, "any part of Upper Silesia 
transferred to Poland," does not look toward a division 
of the plebiscite area, but very accurately takes note of 
the fact that the plebiscite area did not include the whole 
of Upper Silesia (Article 88) ; the said expression, in tak- 
ing note of the sovereignty of Germany, in any event, 
over the German portion of Upper Silesia not within the 
plebiscite area, is therefore technically more correct than 
would have been the use of any such expression as 
"throughout Upper Silesia." 

I have now examined in detail all of the pertinent lan- 
guage of the Treaty of Versailles which might possibly 
be used in argument in favor of the view of the experts 



21 



that the Treaty of Versailles contemplates the division 
of Upper Silesia between Germany and Poland; and from 
this detailed and technical examination it appears to me 
that the view of the experts is not to be supported, and 
that the first of the three principles stated by them must 
be laid aside as erroneous. 

This being the case, the second and third of the above 
cited principles of the experts need not further be dis- 
cussed. 

Thus from the narrow and technical point of view of 
the foregoing discussion, I have shown that the argument 
in favor of any division of Upper Silesia cannot be sup- 
ported. 

But the question of Upper Silesia is not properly to be 
looked at from any narrow or technical point of view. It 
is a question involving great human and national rights, 
and the broad principles upon which it should justly be 
determined, and upon which the Parties to the Treaty of 
Versailles expressly agreed that it should be determined, 
are those announced in the utterances of President Wil- 
son. 

Turning to those utterances, we find in the Thirteenth 
Point, President Wilson limits the territories of Poland 
to those containing "indisputably Polish populations." 
In the address of February 11, 1918, is found the same 
expression, "indisputably Polish peoples who lie con- 
tiguous to one another." To call the Upper Silesians "in- 
disputably Polish," and to award to Poland a cession from 
Upper Silesia as "indisputably Polish," would be such a 
direct contradiction of the principles upon which the 
Peace was negotiated, as to shock the conscience of the 
world. 

Nor can any decision of the question of Upper Silesia 
by way of adjustment or compromise and as a political 



22 

makeshift be admitted. The ringing words of President 
Wilson above quoted forbid this in advance: 

"Every territorial settlement involved in this war 
must be made in the interest and for the benefit of 
the populations concerned, and not as a part of 
any mere adjustment or compromise of claims 
amongst rival States." 

The indivisibility, the unity of Upper Silesia was ex- 
pressly admitted by the Allied and Associated Powers. 
Doubtless that unity was admitted under the mistaken 
idea that the vote would be Polish, but it was none the 
less distinctly admitted. In the covering Note of June 16, 
1919, signed by M. Clemeneeau in behalf of the Allied and 
Associated Powers, the question of the Note was expressly 
stated to be 

"whether Upper Silesia should form part of Ger- 
many, or of Poland." 

Could any statement be more clear, more precise? Here 
is no talk of districts, of basins, of communes, but a direct 
statement of the decision of the Allied and Associated 
Powers, imposed upon and accepted by Germany. 

Indeed, the fundamental error of the Allied and Asso- 
ciated Powers, and possibly the reason why at the Con- 
ference of Paris they declared the unity of Upper Silesia, 
is frankly admitted by M. Briand, who is quoted in Le 
Temps of August 11 last as declaring: 

"Et meme, quand on a decide de tenir compte 
des reclamations allemandes et accorde le Plebis- 
cite, c'etait avec l'idee unanime que la population 
etait polonaise de langue et de race." 



23 

That idea of the Allied and Associated Powers is ex- 
pressed with emphasis by the learned Professor Lord, of 
Harvard University, who was an American territorial ad- 
viser on Polish affairs at the Conference of Paris, and 
who is certainly not unfavorably disposed to any just as- 
pirations of Poland. 

In the work "Some Problems of the Peace Conference" 
(Cambridge, U. S. A., 1920) written before the plebiscite 
in Upper Silesia, Professor Lord says (p. 186) : 

"It (a cession of Upper Silesia) was a sacrifice 
that could be fairly demanded only if the majority 
of the population in Upper Silesia clearly and un- 
mistakably desired union with Poland." 

And again in the work "What Really Happened at 
Paris" (New York 1921) also written before the plebis- 
cite, Professor Lord says (pp. 1, 80, 81) : 

"It could well be argued that so great a sacrifice 
could not fairly be proposed unless it was certain 
that the majority of the population desired union 
with Poland." 

1 might pass without notice assertions which have been 
made as to the relative value in the plebiscite of the votes 
of different classes of individuals; certainly it is sufficient 
to cite the following just observation of M. Briand (Le 
Temps, August 11, 1921) : 

"Le vote a eu lieu le 20 mars dernier. Tout le 
monde est d'accord pour reconnaftre qu'un vote est 
un vote et que la voix d'un ouvrier a la meme valeur 
que la voix d'un paysan." 



24 



Examination of the votes of different districts of Upper 
Silesia would only obscure the discussion of the real 
question. In a summary way, I have above mentioned 
the results of the plebiscite. There are a few districts in 
which there is a comparatively small Polish majority. 
This is wholly immaterial under the principle of self- 
determination. 

Only for a comparatively brief period before 1163 did 
Upper Silesia form a part of Poland, and the Poland of 
seven and eight centuries ago can hardly be regarded as 
being in reality the Poland of later times. During per- 
haps three of the six centuries following, Poland was a 
Great Power, but, during all that time Upper Silesia re- 
mained German soil and is German soil today, as it has 
been for 750 years past. 

Under such circumstances, the idea that portions of a 
State should be, so to speak, sliced off, and given to an- 
other State, at the wish of a small number of inhabitants 
who have crossed the frontier and live near the 
boundary, must be wholly rejected. Such an idea forms 
no part of the principles agreed upon by the Parties to 
the Treaty of Versailles as applicable to the case of Upper 
Silesia. Such an idea would not only be unjust, but as 
the Council of the League of Nations has itself said, would 
be "incompatible with the very idea of the State as a 
territorial and political unity." 

That decision of the Council of the League of Nations 
was taken in the case of Sweden and Finland regarding 
the Aaland Islands; islands which are separated from Fin- 
land physically, and the population of which practically 
unanimously desired union with Sweden. 

The Council of the League of Nations decided unani- 
mously against the separation of the Aaland Islands from 
Finland and adopted the report of the Commission of 



25 



Jurists. This action of the Council of the League of Na- 
tions and the terms of the Report are conclusive against 
any division of Upper Silesia. The whole Report (Docu- 
ment du Conseil B.7.16 Avril 1921) is most instructive, 
hut only a brief extract can be quoted (pp. 27, 28) : 

"* * * it is just this principle of free determin- 
ation (or self-determination) which is, as the 
Swedish memorandum states, at the bottom of the 
Aaland question. 



"Let us turn to the question of principle as it 
stands in relation to the Aaland problem bearing 
in mind that Finland has existed as a State for a 
century with the same frontiers, in that she has 
given striking proof of her national strength and 
solidarity. It is possible to admit as an absolute 
rule that a minority of the population of a State 
which is definitely constituted and perfectly capa- 
ble of fulfilling its duties as such, has the right of 
separating itself from her in order to be incorpo- 
rated in another state or to declare its independ- 
ence? The answer can only be in the negative. 
To concede to minorities either of language or re- 
ligion or to any fractions of a population the right 
of withdrawing from the community to which they 
belong, because it is their wish or their good pleas- 
ure, would be to destroy order and stability within 
States and to inaugurate anarchy in international 
life; it would be to uphold a theory incompatible 
with the very idea of the State as a territorial and 
political unity. 

"The idea of justice and of liberty embodied in 
the formula of self-determination, must be applied 
in a reasonable manner to the relations between 
States and the minorities they include. It is just 
that the ethnical character and the ancient tradi- 



26 



tions of these minorities should be respected as 
much as possible, and that they should be specially 
authorized to practice freely their religion and to 
cultivate their language. This postulate marks one 
of the most noble advances of modern civilization 
and, as it is clear that there can be no lasting peace 
apart from justice, constitutes one of the most 
powerful means of strengthening peace and com- 
bating hatred and dissentions both within the State 
and in international relations. But what reasons 
would there be for allowing a minority to separate 
itself from the State to which it is united, if this 
State gives it the guarantees which it is within its 
rights in demanding for the preservation of its 
social, ethnical or religious character? Such in- 
dulgence, apart from every political consideration, 
would be supremely unjust to the State prepared 
to make these concessions." 

The question of Upper Silesia was referred to the Coun- 
cil of the League of Nations by a resolution of the Su- 
preme Council on the date of August 12th, 1921, as fol- 
lows: 

"Le Conseil Supreme, avant de statuer sur la 
fixation de la frontiere entre l'Allemagne et la 
Pologne en Haute Silesie, conformement h l'Article 
88 du Traite de Versailles, decide, par application 
de l'Article 11, paragraphe 2, du pacte de la Societe 
des Nations, de soumettre au Conseil de la Societe 
les difficultes que presente la fixation de cette fron- 
tiere et de lui demander de vouloir bien lui faire 
connaiixe la solution qu'il recommande sur le trace 
de la ligne qu'il appartient au principales puis- 
sances alliees et assoeiees d'etablir. 

En raison de la situation en Haute Silesie, le 
Conseil de la Societe des Nations sera prie de vou- 
loir bien considerer cette affaire comme etant de 
grande urgence." 



27 



Paragraph 2 of Article 11 of the Covenant of the League 
of Nations reads : 

"It is also declared to be the friendly right of 
each member of the League to bring to the atten- 
tion of the assembly or of the Council any circum- 
stance whatever affecting international relations 
which threatens to disturb international peace or 
the good understanding between nations upon 
which peace depends." 

The Council of the League of Nations has accepted the 
reference. 

While the question of Upper Silesia before the League 
of Nations may perhaps be technically not a cause to 
which Germany is a party in the legal sense, yet it is a 
question in which Germany is vitally interested in every 
real sense, not only because of the interest of German 
peoples present and future, but also and particularly at 
this time because of the obligations of Germany to other 
powers. 

By the very terms of the reference by the Supreme 
Council, the question of Upper Silesia is one which is not 
merely local or of European interest, but of worldwide 
importance; and not only is the question one which, in 
the judgment of the Supreme Council, 

"threatens to disturb international peace or the 
good understanding between nations upon which 
peace depends," 

but is one in which the decision of the Council of the 
League of Nations is in reality final, so far as the Supreme 
Council is concerned. 



28 



In the House of Commons on August 16th last, Mr. 
Lloyd George declared that France, Italy, Japan and 
Great Britain had agreed to accept the recommendation 
of the Council of the League of Nations in the matter of 
Upper Silesia. So that recommendation of the Council 
of the League of Nations will require only the subsequent 
formal approval of the Supreme Council, pursuant to the 
agreement to give that formal approval, already made by 
the four Powers. 

In the same speech of August 16th last, Mr. Lloyd 
George also said: (London Times, August 17, 1921) 

"It is the most important question that has yet 
been referred to the League, and undoubtedly the 
reputation, the position, and the influence of the 
League will be considerably enhanced if it success- 
fully deals with this most complicated problem. 
The only other observation that I should like to 
make about it is this. Now that it has been re- 
ferred the whole question goes there and not a part 
of it. What I mean is that they are not bound in 
the least by any proposals or counter-proposals 
made either by the French or the Italians, or by 
ourselves, with a view to effecting an arrangement. 
There were a good many things proposed with a 
view to a compromise. The French are not in the 
least bound by any suggestion which they made 
with a view to meeting us. 

On the other hand, the Germans are not bound 
by any proposal made by the Italians or ourselves, 
and the whole question of Upper Silesia will be 
dealt with on the basis of the Treaty, and will be 
heard by this Tribunal." 

So very properly the League of Nations is wholly free 
in the question of Upper Silesia. The League is not 
bound by any so-called attempt at compromise or by any 



29 



line drawn on a map with the idea of reconciling the 
conflicting political interests and aspirations of Powers 
not territorially concerned in this matter. Neither is the 
League of Nations bound by any report submitted to the 
Supreme Council by experts of the four Powers or by 
others. 

On the contrary, the League of Nations is under a 
solemn duty to examine from the very foundation the 
fundamental questions of human right and justice which 
are involved in the question of Upper Silesia. 

I need not prolong this opinion by an attempt to indi- 
cate the gravity of the question which confronts the 
League of Nations; not only are involved the rights of 
millions of peoples now living and hereafter to be born, 
but perhaps of greater importance, there are involved 
those ideals of a better world, of a new era, of a reign 
of justice, toward which the souls of all mankind are 
turned with trembling hope. 

In such a case the League of Nations may well regard 
those aims of the League which are mentioned in the pre- 
amble of the Covenant : 

"The firm establishment of the understandings 
of international law as the actual rule of conduct 
among Governments and 

the maintenance of justice and the scrupulous re- 
spect for all treaty-obligations in the dealing of 
organized peoples with one another." 

From the foregoing examination of the question of 
Upper Silesia and the consequent observations thereon 
but one conclusion can result. 

It is my considered opinion, Your Excellency, that in 
right, in justice and in law, Germany is indubitably enti- 
tled to retain, as an integral part of German territory, the 



30 

whole of the plebiscite area of Upper Silesia, and I am 
further of the opinion that the recommendation of the 
Council of the League of Nations to the Supreme Council 
in the matter of Upper Silesia should be to the effect 
stated. 

I have the honor to remain, Your Excellency, 

Faithfully Yours, 

DAVID HUNTER MILLER. 



Appeal Printing Company, 22 Thames Street, New York City 



LIBRARY OF CONGRESS 






021 782 568 4 f 






